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and on the death of any beneficiary "in trust for his, her or their child or children and the issue, if any, of any of his, her or their deceased child or children who shall be living at the time of his, her or their decease respectively, his, her or their executors, administrators and assigns." In case of the death of any beneficiary without leaving issue at his death there is a gift over of which it is sufficient to say that its terms are such as to render it concededly illegal and void, and so the courts below have held. The invalidity of the gift over in default of issue surviving the life tenant cannot affect the primary gift to that issue if there should be such. Harrison v. Harrison, 36 N. Y. 543; Woodgate v. Fleet, 64 N. Y. 566; Underwood v. Curtis, 127 N. Y. 523, 28 N. E. 585. The question then is as to the interpretation and effect to be given to the provision in favor of the issue of the life tenant. If that gift terminates the trust, then there is no illegal suspension of the power of alienation or of the absolute ownership of the property; while, on the other hand, if by the provisions of the gift a trust otherwise lawful is continued for the benefit of the children, the gift would be void as suspending the absolute ownership of property during the lives of persons not in being at the death of the testator. The learned trial judge held that on the death of a life tenant the corpus of his share vested absolutely in his issue. In this view we think he was clearly correct. The trust designated in the will is a dry or passive trust involving no active duties on the part of the trustees. In such case the law vests the legal title in the beneficiary. Real Property Law, Laws 1896, p. 570, c. 547, § 73. A grant to A. in trust or for the use or benefit of B. is not void, nor does it fail. It is in law a grant to B. Wright v. Douglas, 7 N. Y. 564; Woodgate v. Fleet, supra. It is It is also quite apparent that such was the intent of the testator, for while the executors are directed to hold the shares of the beneficiaries who took immediately on the death of the testator during their respective lives, the provision for the issue of the life tenant is unlimited and unqualified, in trust for his, her or their child * his, her or their executors, administrators and assigns." Surely the testator, although layman as he was, and possibly ignorant of the statute against perpetuities as he may have been, never contemplated the continuance of a trust for the benefit of the assignee of those children. See Hopkins v. Kent, 145 N. Y. 363, 40 N. E. 4. The learned counsel for the appellants insists that the same doctrine, if applied to the trusts for the immediate beneficiaries, renders them inoperative as trusts, for as to those no active duties are imposed upon the trustees. Other portions of the will lead to a contrary view, but, granting the claim of the counsel in this respect, it can have no effect on the validity of the will. The only result that would flow from his con

tention is that the life estates of the primary beneficiaries would be legal instead of equitable, and would not suspend the absolute ownership of the property for any period whatever. In that question, however, the appellants have no interest. It concerns only the life tenants. It is urged, however, that the testator intended to create a trust and that if his intention is not allowed to prevail the whole testamentary scheme should fall. This argument is equally applicable to every grant made to one for the use or benefit of another, and would abrogate the statute which prescribes in such case, not that the grant shall be void, but that the legal title shall vest in the beneficiary.

We are therefore of opinion that the judgments of the court below were correct, and should be in all respects affirmed, with costs to all parties, to be paid out of the estate.

O'BRIEN, J. This was an action to procure a judicial construction of the will of David Stewart Denison, who died on July 1, 1898. The will and the codicil attached were admitted to probate as valid testamentary instruments and the questions in this case relate solely to the construction and meaning of the seventh or residuary clause. The court at Special Term held that the will was valid and this judgment was affirmed on appeal. The contention of the appellants is that the residuary clause is void for the reason that by its provisions the power of alienation was suspended for more than two lives. It is argued that the language used in framing this clause creates a perpetual trust, and therefore, of course, suspends the power of alienation. It is not claimed to be merely the creation of a trust extending beyond two lives, but a trust that was to endure forever and tie up the title to the residuary estate perpetually.

The residuary clause is very long and very much involved. All that was necessary could have been expressed in very few words. But the clause actually fills nearly four printed pages of the record, and in the multi tude of words and phrases employed it is not surprising that there is great difficulty in ascertaining the meaning of the instrument. It may be conceded that from the wealth of words employed by the draftsman there can be selected some expressions which standing alone and construed literally, would render the testator's disposition of the resid uary estate invalid. On the other hand, it is quite clear that when the will is viewed as a whole the mind is forced to the conclusion that the testator did not intend to die intestate as to any part of his property, either by omiting to make a will at all, or by making one so palpably contrary to law

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construction, rather than to hold that the testator intended to create a trust in perpetuity. It is not a holographic will. It was evidently drawn by counsel learned in the law. The draftsman, however, failed to appreciate the importance of simple and concise language, and was led, for some reason, to insert provisions which were wholly unnecessary, and which, taken literally or upon close construction, would endanger the validity of the whole instrument.

It is conceded that by the terms of the will the widow of the deceased was given a life interest in the whole residuary estate. Upon her death one of the future estates in trust, which the statute permits to be created, had terminated, and, uness more than another trust estate for life was created, then the statute was not violated. The residuary clause is so long and so obscure that it is not practicable to set it out in full. It has been analyzed with great intelligence in the very able opinion which was given by the learned judge at Special Term. We agree in the construction given to the will in that opinion, and what remains to be said here may seem to be little more than a paraphrase of that opinion; but since the learned court below on appeal gave no opinion, it may be necessary for us to express briefly the views which we think must lead to an affirmance of the judgment. This is a case for the application of the rule that, in order to effectuate the intention of the testator derived from the whole will, grammatical rules may be disregarded and words and limitations may be transposed, supplied or rejected. l'ond v. Bergh, 10 Paige, 140, 152; Phillips v. Davies, 92 N. Y. 199; Starr v. Starr, 132 N. Y. 158, 30 N. E. 384.

The testator, in the residuary clause, made a bequest in trust for the use and benefit of the children of his brother and sister who should be living at the time of his death, and the issue then living of deceased children, and directed the trustees to divide his estate as soon as practicable into as many shares as there were beneficiaries, and to hold the shares so set apart for their respective use and benefit during their respective lives. Later on the will authorizes the trustees to sell and dispose of such part of the estate as may be necessary to make a fair and equitable division of the same among the children and descendants of said trustees living at the time of the testator's death. It is entirely clear that the will thus created separate life estates in trust, and that it did not suspend the power of alienation of any portion of the trust estate for more than a single life, in addition to that of the widow. The will further provides that after the respective deaths of such life beneficiaries their respective shares shall be held in trust for their respective children and the issue of such as shall have died, as tenants in common, the children to take per capita and the issue of deceased children per stirpes. It would also

seem to be reasonably clear that the testator did not, by this latter provision, intend to create an active trust, but that the trustees were to hold the property simply for the purpose of distribution.

There are several provisions of the will that justify this conclusion: (1) There were no words directing that the trustees shall hold such shares for their use and benefit during their respective lives. The testator deemed those words necessary in creating the first life estate, and their omission here is quite significant. (2) The provision that after the death of the first life beneficiaries the trustees should hold their respective shares in trust for their respective children who shall be living at the time of such decease and the then living issue of such as shall have died, adds force to this construction. If the testator intended a perpetual trust for the benefit of the children and descendants of the trustees, why did he so carefully limit the estate upon the death of the first life beneficiaries to such children and descendants as should then be living? (3) Further confirmation of this construction is found in the fact that the testator directs that, upon the death of the life beneficiaries, their respective estates shall be held for their children and descendants as tenants in common. This clearly indicates that no active trust was contemplated, but merely a power of distribution. (4) It will be observed further that the cross-remainders which the will purports to create upon the death of the children and descendants of the trustees to whom shares have been limited for life are ineffectual. These cross-remainders can only be given effect by tacking them to the first life estates created. as those are the only estates that are specifically limited for life. If, therefore, the testator had intended a perpetual trust and not merely a trust for the purpose of distribution to the second takers, why did he limit the cross-remainders to the death of the first takers without issue?

Again, if the will had said "in trust to divide the estate among his, her or their child or children," instead of "in trust for his, her or their children," no one would question this construction. The context of the will shows that this was the clear meaning and the courts may interpolate those words in order to carry out such intention. While these cross-remainders are doubtless invalid, they are of no present consequence, inasmuch as the conditions which would give rise to them have never occurred. It is generally quite sufficient to deal with these questions when the case arises. They certainly can have no effect upon an interest bequeathed to a life beneficiary who has children or other descendants. Hence, these cross-remainders may be eliminated from the case since it cannot be said that their presence in the will is necessary for any general scheme of the testator in the disposition of his property. The provision that, in case each and every

one of the life beneficiaries should die without children or descendants, the testator's estate should be distributed according to the intestate laws, was evidently inserted out of abundant caution to guard against a possible intestacy and is of no consequence for the reasons already stated. So, also, the provision that the shares of the testator's nieces and grandnieces shall be held by the trustees for their separate use, free and clear from any debts of their husbands, has reference solely to the first life beneficiaries. This is clearly manifest because the language is "to hold the shares or portions which in the division of my estate they shall set apart to my nieces and grandnieces for their sole and separate use and benefit free and clear," etc. The first life estates are the only ones that the trustees are called upon to divide and set apart. We think that the will, taken as a whole, is capable of the construction that will render it valid, and that the objectionable clauses above referred to can be cut off and eliminated without destroying the general scheme of the testator.

The judgment should be affirmed, with costs to all parties who have appeared in this court, payable out of the estate.

VANN, WERNER, and HISCOCK, JJ., concur with CULLEN, C. J. O'BRIEN, J., reads for affirmance. HAIGHT, J., dissents. WILLARD BARTLETT, J., not sitting. Judgment affirmed.

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1. TELEGRAPHS AND TELEPHONES POLES WIRES-RIGHT TO ERECT-ACQUISITION. Telegraph and telephone companies derive their right to erect their poles and string their wires along streets and highways directly from the state.

[Ed. Note. For cases in point, see vol. 45, Cent. Dig. Telegraphs and Telephones, § 6.] 2. MUNICIPAL CORPORATIONS - VILLAGES POWER TO REGULATE ERECTION OF TELEGRAPHI POLES IN STREETS.

Transportation Corporations Law, Laws 1890, p. 1152, c. 566, art. 8, § 102, declares that telegraph and telephone corporations may erect, construct, and maintain the necessary fixtures for their lines "upon, over or under" any of the public roads, streets, and highways, etc.; and Village Law, Laws 1897, p. 394, c. 414, 89, subd. 9, confers on villages power to regulate the erection of telegraph, telephone, or electric light poles or the stringing of wires in, over, or upon the streets or public grounds, or upon, over, or in front of any building or buildings. Held, that such power to regulate was intended to authorize villages to determine the location of the poles and the streets to be occupied and did not authorize villages to pass resolutions requiring the elimination of openair construction and the placing of the wires in conduits.

[Ed. Note. For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, §§ 14631470.]

Appeal from Supreme Court, Appellate Division, Fourth Department.

Suit by the village of Carthage against the Central New York Telephone & Telegraph Company. From an order of the Appellate Division (96 N. Y. Supp. 919, 110 App. Div. 625), reversing by a divided court an order (96 N. Y. Supp. 917) vacating a temporary injunction, complainant appeals. Reversed.

Frederick G. Fincke and W. B. Van Allen, for appellant. A. E. Kilby, for respondent.

EDWARD T. BARTLETT, J. This appeal is taken by permission of the Appellate Division, and the following question certified: "Has the plaintiff, the village of Carthage, the right and power to require and compel the defendant, the Central New York Telephone & Telegraph Company, to place the extension of its existing lines in the streets of said village in underground conduits?"

swer.

A few only of the facts appearing by the affidavits in this case are material to a solution of the single question submitted for anIt appears that the defendant company had for some years prior to the 1st day of January, 1905, operated a telephone system in the village of Carthage. On or about that date the defendant company made application to the board of trustees of the plaintiff for permission to extend its telephone lines in said village. After due consideration the board passed the following resolution: "Resolved, that the said telephone company be allowed to maintain an exchange in said village by means of conduits under the streets only, the location of which is to be under the direction of this board. And it is further resolved, that no more poles be erected by said company in said streets and that such company be required to remove all its poles erected since January 1, 1905." The defendant was served with notice of this resolution, but continued to erect poles and string wires notwithstanding. Thereupon the village commenced this action in equity, praying for a permanent injunction enjoining the defendant from erecting any more poles in the streets and compelling the removal of those it had erected since January 1, 1905, after knowledge of the foregoing resolution of the board of trustees. A temporary injunction was granted by the county judge of Jefferson county, enjoining the defendant as prayed. The defendant moved to vacate the temporary injunction, which motion was granted. The learned judge at Special Term rested his decision, according to his opinion, on the lack of power in the village to compel the defendant to place the wires of its proposed extended line underground; also that "when the village of Carthage assumes to require one telephone company to place its wires underground in the same streets in which another is permitted to use poles and open air construction, it does an act which cannot be justified, even

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assuming the matter is within its jurisdic-| tion." On appeal by the village to the Appellate Division the order vacating the temporary injunction was reversed, with a divided court; Mr. Justice Nash writing the dissenting opinion, and McLennan, P. J., concurring.

of the

We agree with with the conclusion dissenting opinion that it is preferable to dispose of the matter upon the question of right rather than that of an illegal discrimination between the two competing companies operating existing plants in the same streets of the plaintiff village. The question of law certified to this court as to whether the village has the power to compel the defendant to place the extension of its existing lines in the streets in underground conduits is to be determined by the present state of legislation bearing upon the subject. It has long been the settled law of this state that telegraph and telephone companies derive the right to erect their poles and string their wires directly from the state. Transportation Corporations Law, Laws 1890, p. 1152, c. 566, art. 8, § 102, headed "Telegraph and Telephone Corporations," reads in part as follows: "Construction of Lines. Such corporation may erect, construct, and maintain the necessary fixtures for its lines upon, over, or under any of the public roads, streets and highways," etc. Our attention is called to certain general provisions of the charter of the village of Carthage, which do not in terms refer to the subject under consideration, from which it is argued that it can be implied that the Legislature has delegated to the village the power to compel telegraph and telephone companies to place their wires underground. We are of opinion that, while it is competent for the state to delegate its sovereign power to cities and villages in regard to the construction, management, and control of these companies, such surrender of sovereignty cannot be implied, but must rest on express legislation containing a clear and unqualified grant of power.

It is further argued on behalf of the plaintiff village that the village law (Laws 1897, p. 394, c. 414, § 89, subd. 9) is to be construed as conferring the power in question. It reads as follows: "Poles and wires. To regulate the erection of telegraph, telephone, or electric light poles, or the stringing of wires, in, over or upon the streets or public grounds, or upon, over or in front of any building or buildings." It is to be observed that the Legislature when conferring upon these companies in the Transportation Corporations Law the authority to construct and maintain the necessary fixtures for their lines, used the words "upon, over or under" any of the public roads, etc., while in the Village Law the language is "in, over or upon" the streets, etc. This discrimination in the use of language is consistent with the language of the section relied upon from the Transportation Corporations Law, § 102. The Legislature

having granted these corporations the right to construct and maintain its lines upon, over or under any public roads, streets and highways, it sought to confer upon the boards of trustees of villages the power to regulate the erection of telegraph, telephone or electric light poles, or the stringing of wires, in, over or upon the streets, etc. It is clear that the intention of the Legislature was to permit villages to regulate the erection of telegraph, telephone or electric light poles and the stringing of wires on these poles. The right to erect these poles and string the wires is not derived from the village authorities, but they are permitted to regulate the erection of the same; that is to say, the location of the poles and the streets to be occupied are, doubtless, within the reasonable power of the village to regulate. It is apparent that if the state should see fit to surrender its sovereignty in the premises and permit each municipality, through which a telegraph or telephone line passes, to determine whether wires should be strung upon poles or placed in conduits according to the varying judgments of the different local boards, it would work a great and radical change in the right of companies to construct and maintain their plants. As the law now stands the company is at liberty to decide whether it will go on, over or under a street, subject to the right of the state to revoke its license. Opinions may differ as to which policy should prevail in view of the rapid increase of telephone companes and the disfigurement of streets by the erection of a large number of poles, each company placing its own; be this as it may, it is clear that no such power as is claimed by the respondent is at present vested in the villages of the state.

The order appealed from should be reversed, with costs in this court, and the order of the Special Term vacating the temporary injunction affirmed. Question certified answered in the negative.

CULLEN, C. J., and GRAY, O'BRIEN, HISCOCK, and CHASE, JJ., concur. WERNER, J., not voting.

Ordered accordingly.

(185 N. Y. 608)

ABEL v. BISCHOFF et al. (Court of Appeals of New York. June 19, 1906.)

On motion to amend remittitur. Denied. For former opinion, see 77 N. E. 1181, 185 N. Y.

PER CURIAM. We think the meaning and effect of the decision heretofore rendered by us is perfectly clear. The judgment of the Appellate Division was affirmed, with one modification only, by which the plaintiff was permitted, on taking title, to pay $105,000 of the purchase money by a mortgage payable

four months from date of closing title, with interest at 5 per cent. In all other respects the plaintiff, as a condition for obtaining title, must comply with the terms of the judgment of the Appellate Division, which charge him with interest on the whole of the unpaid purchase money of $135,000 from May 4, 1903, and credit him with the amount of rents received, less the taxes and insurance thereon paid by defendants since said May 4, 1903.

. The motion to amend the remittitur should be denied, with $10 costs.

CULLEN, C. J., and EDWARD T. BARTLETT, HAIGHT, HISCOCK, and CHASE, JJ., concur. GRAY and O'BRIEN, JJ., absent.

Motion denied.

(185 N. Y. 466)

4. SAME CONTRIBUTORY NEGLIGENCE.

If a servant, in constructing a scaffold, used planks furnished to him by his master, and the servant had no knowledge at the time he used the planks that they were unsafe, he was not chargeable with contributory negligence, precluding a recovery for injuries caused by the falling of the scaffold, in that he used such material which was in fact unsafe.

[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 675-677.] 5. SAME-INSTRUCTIONS-REFUSAL.

Labor Law, Laws 1897, p. 467, c. 415, § 18, provides that a person employing another to perform labor shall not furnish, erect, or cause to be furnished or erected, for such labor any scaffolding which is unsafe or improper, and not so constructed as to give protection to the life or limb of the persons employed. In an action for injuries to a servant by the falling of a defective scaffold, plaintiff requested a charge that it made no difference in applying such statute to the case whether defendants themselves erected or caused the scaffold to be made, if it was made by their direction by any one else. Held, that such instruction was properly refused as too broad.

Appeal from Supreme Court, Appellate June 19, Division, Second Department.

MADDEN v. HUGHES et al. (Court of Appeals of New York.

1906.)

1. APPEAL-EXTENT OF REVIEW-EXCEPTIONS. Where, at the conclusion of plaintiff's evidence in an action for injuries to a servant, defendants moved for a dismissal of the complaint on the ground that plaintiff had failed to show negligence on defendants' part or his own freedom from contributory negligence, but neither by request to charge, nor motion, was the court requested to hold that the scow in which plaintiff was working at the time of his injury was not a "structure," within Labor Law, Laws 1897, p. 467, c. 415, § 18, prohibiting a master from furnishing an unsafe scaffold for the performance of labor on any kind of a building or structure, or that the appliance plaintiff was using when injured was a "scaffold" within such section, such questions could not be reviewed on appeal.

[Ed. Note.-For cases in point, see vol. 2, Cent. Dig. Appeal and Error, § 1079.] 2. SAME-CONTRIBUTORY NEGLIGENCE-SUFFICIENCY OF EVIDENCE-REVIEW BY COURT OF APPEALS.

Where an action for injuries to a servant was defended on the theory of contributory negligence, which issue was submitted to the jury and a verdict found thereon had been unanimously affirmed by the Appellate Division, the Court of Appeals has no power to consider whether there was evidence to sustain the verdict on such issue.

[Ed. Note. For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 4322, 4324.] 3. MASTER AND SERVANT-INJURIES TO SERVANT-ACTION-INSTRUCTIONS.

In an action for injuries to a servant by the falling of a scaffold, the court charged that the question in addition to plaintiff's negligence was whether defendant was negligent in furnishing plaintiff with a scaffold which was unsafe, improper, and unsuitable and did not afford protection to life or limb; that the defendants were absolutely commanded by the statute to supply workmen with "this sort of apparatus, it is their duty to do it. They have no excuse to offer and there are none which they can invoke." Held, that such instruction should be construed to mean that defendants had offered no evidence of any excuse, and therefore there was none that they could invoke before the jury, and was not, therefore, ground for reversal as charging that defendants were bound to supply an unsafe scaffold.

Action by James Madden against James Hughes and others. From an order of the Appellate Division (93 N. Y. Supp. 324, 104 App. Div. 101), unanimously affirming a judgment entered on a verdict in favor of plaintiff and denying a new trial, defendants appeal. Affirmed.

Edward W. Norris, for appellants. Frederick S. Martyn, for respondent.

HAIGHT, J. This action was brought to recover damages for injuries sustained by the plaintiff on the 25th day of January, 1902, while in the employ of the defendants. At the time of the accident he was engaged in putting a beam in one of the pockets of a scow which the defendants were repairing. The scow was divided into different pockets, each of which was 28 feet wide across the top and 13 feet in length from bulkhead to bulkhead. The sides of the pocket sloped diagonally from the top of the scow towards the center at the bottom. In order to facilitate the placing of the beam in position near the top of the pockets, a scaffold was constructed out of two 3-inch planks, which were spliced by being nailed together and supported at either end by a rope looped around the plank and then fastened to the bulkhead. While the plaintiff was standing upon this scaffold putting the beam into position, the plank broke, causing him to fall to the bottom of the pocket, about 8 feet below, causing the injuries for which he seeks to recover damages in this action. The trial resulted in a verdict for the plaintiff, and the judgment entered thereon has been unanimously affirmed by the Appellate Division.

It is now contended, on behalf of the defendants, that a scow, such as that upon which the plaintiff was engaged at the time of his injury, was not a "structure" within

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